Judge denies request to halt Trinity River flow increases

The request that increased flows on the Trinity River be stopped was denied Wednesday as Judge Lawrence O’Neill issued a ruling two days after teh request was made.

David Smithdsmith@siskiyoudaily.com

The request that increased flows on the Trinity River be stopped was denied Wednesday as Judge Lawrence O’Neill issued a ruling two days after teh request was made. The San Luis & Delta-Mendota Water Authority and Westlands Water District filed a compaint Monday asking that recent increased flows from Trinity Reservoir – aimed at disrupting disease spread among returning salmon – be subjected to a temporary restraining order. The plaintiffs’ complaint cited numerous concerns about water availability for ranchers and farmers in California’s central valley and the United States Bureau of Reclamation’s failure to do an environemntal review under the National Environmental Policy Act.O’neill explains in his ruling that the issue is partly an expansion of a similar challenge in 2013, portions of which have not yet been fully settled. Central Valley Project water users this year have received zero percent of their contract allocations, and the plaintiffs expressed concern in their request that the Trinity releases would impact their opportunity to receive water this year. According to O’neill, the BOR’s own manager of the CVP stated that the agency does not anticipate changing the volume of water diverted from the Trinity River, which “puts to rest” any concern that the augmented flows will impact CVP irrigators this year. He goes on to state that, while the plaintiffs have a potential case for negative impacts to next year’s water allocations, contractual obligations and the hierarchy of water rights provide “no guarantee that any additional water supply would ever end up in Plaintiff’s hands” if releases are enjoined. The plaintiffs also argued that the current projection of a small Chinook salmon return would not lead to an increase in disease incidence or fish kill. Citing biological opinion on salmon disease in the Klamath, O’neill states that returning salmon this year are experiencing higher levels of stress, which lends itself to greater disease incidence. He also noted that run predictions are often lower than the actual return, meaning crowding could occur and lead to a fish kill. Issuing his ruling, O’neill states that while the plaintiffs could possibly succeed on at least one of their claims in the ongoing 2013 suit against the BOR, the “balance of harms” does not warrant an injunction of the 2014 increased flows. “The potential harm to the Plaintiffs from the potential, but far from certain, loss of added water supply in 2015 does not outweigh the potentially catastrophic damage that ‘more likely than not’ will occur to this year’s salmon runs in the absence of the 2014 [Flow Augmentation Releases],” O’neill said. O’neill does put BOR on notice that in the future, the court will consider releases in light of the fact that the agency has repeatedly utilized the emergency exemption from NEPA review when deciding to make late-summer flow augementations. O’neill goes on to state that the issue of whether or not the increases are in fact emergencies and not measured policy deserves an opportunity to be challenged, and warns that a failure to heed the court’s notice may “disappoint” the BOR in future orders.